School districts walk fine line between integration, discrimination

The U.S. Supreme Court's June 2007 decision to strike down integration plans in two public school districts was based on a simple premise: discrimination is discrimination.

"The way to stop discrimination on the basis of race," Chief Justice John Roberts declared, "is to stop discriminating on the basis of race."

In the wake of that ruling, large, ethnically diverse districts are now finding themselves in uncharted waters.

Though prohibited from using race-conscious measures to integrate their schools, districts also must ensure academic success for all students - regardless of skin color or neighborhoods in which they live.

The class-action racial bias suit pending against Elgin Area School District U-46 is one of the first major school discrimination cases to be decided since last year's Supreme Court ruling.

Its outcome, experts say, could have for far-reaching effects.

"Class-action school cases are relatively rare," said Michael Kaufman, Academic Dean and Director of the Child Law and Education Institute at Loyola University Chicago. "This case will almost by definition have profound implications in regards to remedies after last summer's ruling."

Capacity or color?

With a new boundary map in 2004, U-46 abandoned its decades-old practice of busing students across the 90-square-mile district to achieve racial balance.

School board members repeatedly said that the race-neutral map's purpose "was to ensure neighborhood schools."

Not all accepted the decision with open arms.

In February 2005 a group of Elgin families sued the district in federal court, charging that minority students were denied a fair and equal education as required by the Equal Education Opportunity Act of 1974, the 14th Amendment of the U.S. Constitution and the Equal Protection Clause of the Illinois Constitution.

The suit claims U-46 segregated black and Latino students in older, more crowded schools.

The families also accuse the district of discriminating against minority students by denying them proper access to special education; providing inadequate bilingual services; busing minorities further and more often than their white peers; and closing schools in minority areas while opening new ones in white areas.

U.S. District Court Judge Robert W. Gettleman's upped the district's stakes Aug. 8 by granting the case class-action status, a ruling that broadened the lawsuit to include more than 25,000 current and former minority students.

"He's a very shrewd judge," said Kaufman, who litigated a case with Gettleman during the 1980s. "He's sending a very strong message that there's possible class-wide exposure here."

Discrimination cases come in two legal forms.

In the first, a racial classification is written into the law, as when Jim Crow laws in the South mandated that black and white students attend separate schools.

The second form, like the one lodged against U-46, arises from claims a school district has a practice or policy of taking race into account in classroom and school assignments.

"If the plaintiffs prove the district deliberately intended to operate two separate systems, that showing is enough to create liability," Kaufman said. "There might be evidence of that through the use of mobile classrooms for predominately minority students, a drawing of a boundary line or other practices from which you can infer an intent to segregate."

U-46 can, under the law, take a number of measures on its own to diversify its schools without specifically focusing on race: adding dual language programs and building new schools on the border of two diverse neighborhoods.

Only if Gettleman finds liability can race-conscious integration methods be imposed in the district.

After Brown

Brown vs. Board of Education marked the beginning of the Supreme Court's efforts to guide public school integration.

The unanimous 1954 decision held that "separate educational facilities are inherently unequal," with racially segregated schools found to be a violation of the Fourteenth Amendment's Equal Protection Clause.

In 1971, Swann vs. Charlotte-Mecklenberg Board of Education gave judges extensive power in providing remedies to racial segregation in school districts.

Two decades later, after seeing more integrated schools and higher minority test scores, a more conservative court, led by Chief Justice William Rehnquist, took a more hands-off approach to school desegregation. In Freeman vs. Pitts, the court ruled judges could end their supervision of a district's desegregation efforts if all seemed to be going smoothly.

Last summer's 5-4 decision stemmed from cases in Louisville, Ky. and Seattle where districts used race in assigning students to schools although neither previously had operated legally segregated schools or had been under a desegregation decree.

The ruling found these integration efforts to be unconstitutional, but stopped short of entirely barring districts from accounting for race when determining boundaries.

"A district may consider it a compelling interest to achieve a diverse student population," Justice Anthony Kennedy wrote in a swing vote opinion. "Race may be one component of that diversity."

Policy into practice

With a rich ethnic diversity and patterns of residential segregation, the Chicago suburbs are "seemingly ripe for this kind of situation," said Steve Schwinn, a constitutional law professor at John Marshall Law School in Chicago.

While the U-46 case may be the first Illinois class-action lawsuit to result from boundary disputes, the district is by no means alone in contending with issues of diversity while redrawing its attendance zones.

When Carpentersville-based Community Unit District 300 established a parent-led Attendance Boundary Committee in to remap its boundaries in 2006 and 2007, among its guiding principles was to be sensitive to diversity.

Kim Calabrese, a West Dundee resident and Committee member, said the district's main focus "was to try to get kids into their closest school, and try to keep the numbers down."

When the ruling came in that race could not be a factor, "it made our job a little bit easier," she said.

Instead of race, the committee factored in diversity through socioeconomic status.

"We didn't want one high school that has 80 percent free lunch. and the other to have an extremely low rate," Calabrese said.

"As far as the racial diversity, I wish there was more," she added. "But that's not the way the neighborhoods are set up here in the suburbs."

Districts confronting these issues can expect little help from the state or even their peers. Neither the State Board of Education or the Illinois Association of School Boards offer guidance to schools as to how to factor in race in their attendance boundaries, officials said last week.

Illinois Association of School Boards general counsel Melinda Selbee called districts' boundary decisions "incredibly personal" and said her group does not have the staff to do the extensive investigation necessary to steer districts.

"Hire a lawyer," she said. "Not for a lawsuit, hopefully they wouldn't get into the Elgin situation."

Drawing attendance boundaries, Schwinn said, has become even more difficult since last summer's ruling.

"By underscoring the idea that discrimination is discrimination, (the ruling) restricts school boards in ways they were previously not restricted," he said.

Kaufman calls the U-46 racial bias case the first big education case since last summer's Supreme Court ruling.

"This is truly something more cloudy after the decision last summer," he said

"There's a bit of irony here. There's still this law up there that says segregation is unequal, but for the court (after last summer's ruling), when is the goal worthwhile?"

Desegregation since Brown case:

1954: Brown v. Board of Education

Court holds that "separate educational facilities are inherently unequal," with racially segregated schools found to be a violation of the Fourteenth Amendment's Equal Protection Clause

1955: Brown v. Board of Education II

Court gives the task of carrying out school desegregation to district courts with orders that desegregation occur "with all deliberate speed."

1971: Swann v. Charlotte-Mecklenberg Board of Education Gives judges extensive power in providing remedies to racial segregation in school districts. Establishes busing as a solution.

1973: Keyes v. School District No. 1

Limits remedies courts can order for school districts that were not previously required by law to operate racially segregated schools.

1992: Freeman v. Pitts

Rules that judges could end their supervision of a district's desegregation efforts if all seems to be going smoothly.

1995: Missouri v. Jenkins

Overturns a district judge's decision to uphold a tax increase designed to make city schools more attractive and comparable to suburban schools.

2007: Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County

Court says school districts cannot voluntarily use race as the determining factor in students' school assignment.

Sources: U.S. Supreme Court Center, Cornell University Law School Legal Information Center